You need to designate a guardian for your minor child(ren) so that the court does not do it for you in the event of a tragedy.  By designating a guardian in your will, you are leaving the court and your family members and friends with clear instructions regarding care for your child(ren).  This affords you the opportunity to think about who has the values and lifestyle most similar to your own. We recommend that you ask at least two people.  Otherwise, the court will appoint one for you without knowing or taking into account your preferences. 

A will is a written instrument controlling and directing the disposition of property at death. Florida law provides formal requirements for a valid will.

Probate is the court-supervised administration of a decedent’s estate. It is a process created by state law to transfer assets from the decedent’s name to his or her beneficiaries. A personal representative is appointed to handle the estate administration. The probate process ensures that creditors,taxes and expenses are paid before distribution of the estate to the beneficiaries.

A guardian is an individual or institution appointed by the court to care for an incapacitated person – called a “ward” – or for the ward’s assets.

A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.

Any adult may file a petition to determine another person’s incapacity.  The petition must set forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians and a lay person to examine the person and report its finding to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the committee finds the person incapable of exercising certain rights, however, the courts schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the hearing.

A guardian given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward’s support and account for it by filing detailed annual reports with the court. The guardian must obtain court approval for certain financial transactions.

The guardian of the ward’s person may exercise those rights have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care.

Any adult resident of Florida can serve as a guardian. A close relative of the ward who does not live in Florida may also serve as a guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed.

Yes. Guardians must be represented by an attorney who will serve as “attorney of record.”

Among other things…

1. You decide who gets your property instead of the law making the choice for you;
2. You designate a guardian for your children;
3. you name the personal representative (executor) of your will, provided the one named qualifies under Florida law;

This is called dying “intestate”. The inheritance statute determines who gets your property. This statute contains a rigid formula and makes no exception for those in unusual need. The court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probate may be greater than if you had planned your estate with a will and the administration of your estate may be subject to greater court supervision.

A will is “good” until it is changed or revoked in the manner required by law. You can change your will as many times as you desire while you are sane and not under undue influence, duress or fraud, provided it is changed in the required manner.

No. On the contrary, if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

A revocable trust is a document “trust agreement” created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

Upon your death, the trustee is responsible for paying all claims and taxes and then distributing the assets to your beneficiaries as described in the trust agreement.

Your assets, such as bank accounts, real estate and investments, must be formally transferred to the trust before your death to get the maximum benefit from the trust. This process is called “funding” the trust and requires changing ownership of the assets to the trusts. Assets not properly transferred to a trust may be subject to probate.

This is a simplified probate procedure for estates having less than $75,000 of non-exempt assets.

No. Only assets owned by a decedent in his or her name individually require probate.

Assets owned jointly as “tenants by the entirety” with a spouse or “with rights of survivorship” with a spouse or any other person will pass to the surviving owner without probate. This is also true for assets with designated beneficiaries, such as life insurance, retirement accounts, annuities, bank accounts and investments designated as “pay on death” or “in trust for” a named beneficiary.  Assets held in trust will also avoid probate.